Distinguishing public businesses from private contracts might be the best way to protect the Jack Phillipses of the future.
Progressive legal academics are putting a premium lately on rules of textual interpretation. The success of originalism combined with the notoriety of their poststructuralist predecessors in the humanities partly explains their interest. But the unique constitutional status of the First Amendment in our legal system, plus our political institutions and national sensibility probably goes farther in accounting for a recent upsurge in legal theories of interpretation centered on the concept the literary critic Roland Barthes in the 1960s popularized as “the plural text,” where readers interact with underlying linguistic codes to produce shifting patterns of signification within the same discourse. Mining sources from the digital humanities, pragmatist philosophies of John Dewey and Richard Rorty, and aesthetic postmodernism, these theories deny the existence of a unified text by an identifiable author, of an origin or a transcendent authority that commands deference and guides exegesis. As with identity, all meaning is constructed. It’s in the nature of language, these theories agree, to spawn new and continuously unfolding interpretive possibilities. What matters is not faithful translation of a specific linguistic content or intent by the founders or, in the case of statutes, democratic representatives, but the subjective engagement of readers with important texts in such a way as to bring forth previously unseen or unacknowledged meaning formations.
In a recent article in the NYU Journal of Law and Liberty, Stanley Fish, one of Ronald Dworkin’s most clamorous interlocutors in the 1980s, adopts the poststructuralist term “deformance” to describe this mode of interpretation. The neologism captures the dualistic process of destruction and construction characteristic of those who strive to “disrupt and arrest the drive to closure.” This negativity at the core of these methodologies draws on the constitutive nihility of postmodernism, which the French philosopher Jacques Rancière described as “the grand threnody of the unrepresentable/intractable/irredeemable, denouncing the modern madness of the idea of a self-emancipation of mankind’s humanity…”
While these ideas are familiar from the first wave of postmodernism, what distinguishes them now is their elaboration and installation as legal strategy. Proponents are endowing them with a specifically American provenance in order to make them more assimilable by courts. Barton Beebe, for example, cites Justice Antonin Scalia’s opinion in Dastar Corp. v. Twentieth Century Fox Film Corp, a Lanham Act case over whether repackaged public domain materials deserved proprietary treatment. Beebe attributes to Scalia’s rejection of the plaintiff’s claim to brand recognition of its repackaged “communicative” goods a devaluation of tradition. According to Beebe, Scalia recognized in his opinion that “[t]he imperative to copy overrides any concerns about history and authenticity.”
Elsewhere Beebe enlists the pragmatism of American philosopher John Dewey to defend digital copying as “aesthetic play.” He substitutes for the core concept of individualized originality articulated by Justice Oliver Wendell Holmes in Bleistein v. Donaldson Lithographic Co., a “network of massively distributed authorship.” The quoted phrase comes from Richard Rorty, an intellectual descendant of Dewey. According to Beebe, Rorty identifies this network of dispersed meaning as the perfect example of a “poeticized culture.”
Such a culture prizes aesthetic practice and creative consumption over private property or, by extension, individual speech rights. The poeticized culture yields “pleasure… moral and political cultivation… imaginative freedom and self-actualization” for the masses. Dilutive copying, for instance, gives ordinary people the means to fight back against forced patterns of consumption. This process orientation of amateur culture, notwithstanding the mediocrity and degradation of popular culture of its results, justifies any attendant harm to trademark holders.
The false utopia of legal postmodernists
All of this, in addition to the well-known writings of others in this vein such as Amy Adler and Rebecca Tushnet, contains an emphatic note of utopianism. Fish, for example, speaking of the algorithmically-fueled reassessments of classical texts being conducted in the emergent field of digital humanism, invokes a Miltonian vision. In it, the trans-intentional corporatization of meaning uncovered by computers is hailed as a means to materialize the totality of language’s concurrent potential meanings. The choral multiplicity of meaning revealed through data sets of word frequencies, gendered pronoun patterns, proximity to paired terms and the like, according to Fish, begets a new form of temporality, one that overcomes the linearity of discursive language.
Although Fish considers himself an “intentionalist,” he endorses this post-human textualism. Unlike its legal analogue in the work of conservative textualists who employ corpus linguistics, he explains, it’s “theological.” That is, in harmonizing the infinite number of “storylines” of living language in a near-mystical simultaneity, it doesn’t pretend to identify the objectified public meaning that a particular legal provision had at a point in time and that as a consequence should determine its contribution to the content of the law.
NYU professor Amy Adler also projects an extra-textual freedom beyond that guaranteed by the Constitution, using art as her touchstone. She depicts contemporary art as rife with multiple meanings, or — what often amounts to the same thing — non-rational content. This, on her account, puts the dominant forms of artistic expression in society today outside the purview of the First Amendment. The latter seeks to fit expression into the paradigm of the “marketplace of ideas.” But in the world Adler equates with cultural progress, ideas have no place. Non-linguistic, non-linear forms don’t permit of “particularized” meaning. Yet the law extracts from them simplistic lessons it can cognize. This results in a “reductive and cramped reading of visual art” tantamount to political repression.
The artist Richard Prince, for whom Professor Adler consulted on his 2013 appropriation case Cariou v. Prince, serves as Adler’s model. Throughout his deposition, Defendant Prince gave nonsensical, Dadaist answers to inquiries into his purpose for copying the plaintiff’s professional photographs of jungle tribesmen and collaging them in prurient and puerile ways that mocked their realist composition and serious tone. Prince basically turned the legal process into a postmodernist happening. His win on appeal to the Second Circuit marked an unprecedented expansion of the fair-use defense, based largely on the court’s surrender to the avant-garde definition of what makes an expressive work new and different as well as culturally valuable. It also saw the Second Circuit, unfazed by Prince’s refusal to propound a serious artistic reason for his works, formally adopting a “reasonable viewer” standard to bridge the gap.
What’s telling for conservatives is that this same standard was recently rejected in American Legion v. American Humanist Assn., an Establishment Clause case involving a religious monument that stood on public land. This disparity in tests of interpretation of expressive objects (whether religious or artistic) bodes well for the right, as increasingly avant-garde values are gaining traction in fair-use cases via expert testimony by progressive academics ventriloquizing the responses of “reasonable observers.” It also raises a significant question, addressed in the next section. How are these progressive theories that are staking out a new area of radical hermeneutics influencing Establishment Clause cases that involve expressive or artistic dimensions requiring interpretation?
Artistic questions of law in a religious setting
The short answer is that for all their success in intellectual-property jurisprudence, these progressive theories are having no discernible influence in recent cases implicating the free exercise of religion. Quite the contrary. Their absence is conspicuous. The jubilant celebration of semantic disruption and significative pluralism on parade in progressive law review articles and many copyright and trademark cases flies out the window in such cases. A primitive narrowness of interpretation takes over when progressives must confront what Roger Kimball recently called the “genuinely transgressive” presentation of expressive works imbued with sincere religious conviction.
Let’s take a case in point: the aforementioned American Legion case decided this past June. Appealed from the Fourth Circuit, it was originally brought by the American Humanist Association, which complained of being offended by the sight of a prominent World War I memorial at a traffic intersection in Maryland in the shape of a Latin cross. The memorial, dedicated by private citizens 89 years ago to local veterans who had fallen in the first world war, stood on public land. The question for the Court was whether the memorial’s continued maintenance violated the Establishment Clause by aligning the government with a specific religion, thereby coercing dissenters into conformance with the majority faith. Although much was written in the aftermath of the decision (the cross was allowed to stand), one thing was clear. Justice Samuel Alito’s five-vote majority opinion, in determining that the cross didn’t send a sectarian message, hinged on the court’s nuanced understanding of how symbols behave.
Put otherwise, Alito’s opinion in the name of preserving tradition did what leftist exegesis boasts of doing in the name of liberating observers from tradition. Without secularizing the symbol of the cross at issue, which some Christians feared, it recognized that the symbol could communicate heartfelt values on multiple planes of meaning to diverse sectors of the public. “The cross is undoubtedly a Christian symbol,” the court elucidates, “but that should not blind us to everything else that the Bladensburg Cross has come to represent.” Or as Michael Stokes Paulsen explained: “The meanings of a symbol… may change, or proliferate, over the years.” A religious meaning, moreover, can cease to dominate though not entirely disappear. As Alito said, “Even if the original purpose of a monument was infused with religion, the passage of time may obscure that sentiment.” That symbols dynamically accumulate secondary meanings, like a monument that comes to be seen as honoring the dead of later wars, should be perfectly understandable to progressives, consistent as it is with their insistence upon the fundamental multiplicity of symbols and texts. But the dissent of Justice Ginsburg in American Legion demonstrated the opposite. She foreclosed the variant meanings Alito’s historical dissection surveyed, embracing a monosemy, a staunch singularity of meaning, that no progressive theorist of meaning would countenance. This became clear in a number of statements, the gist of which was that “the symbol and its meaning are… associated exclusively with Christianity.”
Indeed, the monosemy of Ginsburg’s interpretation echoes the official position of secularists and humanists. When a cross is at issue, that position holds, any religious liberty claims, along with the symbols that encode them, can only have a single meaning, i.e., an oppressive one signaling unconstitutional government endorsement. Although progressive academics couch their theories of deconstruction in terms of universal characteristics of language, only progressive expression, it seems, can actually host new and diverse interpretations.
Recent cases involving the craftsmanship and artistry of Christian bakers and videographers who stand on their First Amendment rights not to accept commissions for same-sex weddings in alleged violation of anti-discrimination statutes meet similar fates. In principle, they too should receive expansive treatment under progressive theory. But progressives get rid of the contradiction by attempting to cabin religious wares as conduct that can be regulated rather than speech. They claim such wares are wholly devoid of expressiveness or inventive distinction, precluding them from receiving First Amendment treatment.
The progressive position further insists that the intimate processes of designing customized goods are comparable to the raw labor of mowing lawns (Jennifer Boylan’s analogy in commenting on Masterpiece Cakeshop in the New York Times) or drawing cartoons for passing strangers on a sidewalk (the dissent’s analogy in the recent Eighth Circuit case Telescope Media v. Commissioner of the Minnesota Department of Human Rights). Or as also comes up in Telescope Media’s dissent, reasonable observers would perceive that the “story being told” belonged to the customers, not the appellants.
In the end, the appellant videographers’ free exercise claim was allowed to move forward based on its interconnection with their free speech claim. By contrast, in the earlier Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court failed to reach the issue of whether the religious bakers’ custom wedding-cakes were expressive speech. Given the ambiguities, in similar cases to come, the arguments will pivot on legal aesthetic theory. It would be surprising if many of the same questions of interpretation already being fought out in intellectual property and First Amendment/fair use cases weren’t reprised. As with so much of progressive ideology, the pursuit of florid notions of exegetical freedom developed in these cases leads to dogmatism and repression for dissenters. Accordingly, conservatives should position themselves to rebut these ascendant ideas on their own terms.
What is art? Who is the reasonable observer? Is there such a thing as originality and does it convey exclusive rights? Should the standard of originality in copyright law be applicable to hybrid free exercise/free speech cases? Who is the author in a commercial context: the proprietor or the customer? Does an artist have to be independent to tell her own “story”? What about the fact that the most financially successful living avant-garde artist today, Jeff Koons, accepts commissions all the time? Should there be a bifurcated standard based on market criteria? There’s much learning as well as insight into the flaws of opposing rhetoric that comes from discussing these questions. This is as good a reason as any to study and prepare defensively from the progressive playbook.